Discrimination Is Now Discrete, Not Pandemic

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and the editor in chief of the Cato Supreme Court Review.

Updated October 4, 2013, 12:47 PM

“The historic accomplishments of the Voting Rights Act are undeniable,” a unanimous Supreme Court said in 2009. The law’s modern application, however, in the justices’ words, “raises serious constitutional concerns.”

Section 5, which requires federal “preclearance” of any changes in election law in certain covered jurisdictions — and which comes before the Supreme Court again on Wednesday — is particularly problematic. Most recently renewed in 2006 for another 25 years, the provision is based on flawed assumptions and outdated statistical triggers, and flies in the face of the 15th Amendment’s requirement that all voters be treated equally.

Section 5 was once a valuable tool in fighting disenfranchisement but now facilitates the very discrimination it was designed to prevent. For example, its prohibition on “retrogression” effectively requires that minority voters be a majority in some districts — an inherently race-conscious mandate.

The racial gap in voter registration and turnout is lower in states originally covered by Section 5 than it is nationwide. Why subject these jurisdictions to special scrutiny?

Jurisdictions covered by Section 5 are thus subject to predictable litigation, the outcome of which is often dependent on judges’ views of how to reconcile race-conscious mandates with the need to treat people of all races equally. When added to legislators’ partisan interests, this navigation between the Voting Rights Act’s Scylla and the Constitution’s Charybdis inevitably crashes onto judicial shoals.

Moreover, Section 5’s preclearance scheme is an anachronism, based on 40-year-old data that fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in states originally covered by Section 5 than it is nationwide.

Indeed, the list of Section 5 jurisdictions is bizarre: six states of the Old Confederacy (and counties in three others), plus Alaska, Arizona and parts of states ranging from New Hampshire to South Dakota. Curiously, (only) three New York counties are covered, all of them New York City boroughs. What’s going on in the Bronx, Brooklyn and Manhattan that isn’t in Queens or Staten Island? Four members of the Supreme Court hail from Gotham; perhaps they know something the rest of us don’t.

When the court originally upheld the Voting Rights Act, it found that Section 5’s generalized mechanism was necessary because individualized litigation under Section 2 couldn’t effectively fight “widespread and persistent discrimination in voting.” But modern instances of discrimination are discrete. Facetious tests and sinister devices that eluded private rights of action are now permanently banned — while even individual violations are exceedingly rare and are not more likely to be found in Section 5 jurisdictions than elsewhere.

The court’s conclusion in 1966 that Section 5 is a necessary supplement to Section 2, which covers any state practice that “results in a denial or abridgment of voting rights," is thus no longer valid. Yet the “temporary” provision remains in place because of the presumption that election regulations in certain places are illegal until proven otherwise.

But three generations of federal intrusion have been more than enough to kill Jim Crow. In the words of President Obama, the Voting Rights Act has exceeded expectations in making this nation “a more perfect union.”

While celebrating its achievements, we must recognize that this success has obviated its constitutional legitimacy. As Justice Clarence Thomas wrote in 2009, an acknowledgment of Section 5’s unconstitutionality “represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.”